The Role of Universal Jurisdiction in the Fight Against Impunity
Avi Dichter, the former Director of Israel’s General Security Service (GSS), has been sued in a United States court for his role in the Al-Daraj, Gaza bombing that killed fifteen people and injured approximately 150 others. The Center for Constitutional Rights (CCR), along with CCR cooperating attorneys and the Palestinian Center for Human Rights (PCHR), represent the survivors of the July 2002 bombing in a class action lawsuit against Dichter for war crimes, crimes against humanity and extrajudicial killings.(1)
Under the principle of universal jurisdiction (UJ), courts exercise jurisdiction over internationally condemned crimes regardless of where they were committed, and often without the state having a connection to the perpetrator or the victim. UJ laws seek to prevent impunity, whereby human rights violators may evade accountability for their conduct. Such laws in nations that include Spain, Belgium, Germany, and the United Kingdom have been used to convict criminals for human rights abuses committed in other countries. The U.S. criminal UJ torture statute was recently used for the first time to indict Chuckie Taylor for torture in Liberia.(2)
Although universal jurisdiction often refers to criminal proceedings, where a state can (and sometimes must) bring charges, and the defendant can be arrested and imprisoned, it also applies to civil cases brought by survivors for monetary damages, as with the case against Dichter. The suit was brought under the Alien Tort Statute (ATS) (or Alien Tort Claims Act (ATCA)), a statute from 1789 that gives federal courts jurisdiction over civil tort actions by foreign nationals for violations of customary international law. Since 1980, when CCR won Filártiga v. Peña-Irala, holding a former Paraguayan official liable for torturing a Paraguayan citizen in Para guay, the ATS has been used to sue human rights violators found in the U.S. for violations occurring anywhere in the world.(3) Former government officials from countries including Guatemala, Indonesia, Haiti, the Philippines, El Salvador, Ethiopia, and Argentina have been held liable in U.S. courts for human rights abuses committed outside the U.S., against foreign citizens.
Despite such precedent, Dichter moved to dismiss the case claiming that he is immune from liability under the Foreign Sovereign Immunities Act (“FSIA”), which governs U.S. courts’ jurisdiction over foreign states. Some courts have applied the FSIA to individual officials acting within their scope of authority, but the Second Circuit (where Dichter’s case is being heard) has not. A class action case brought by CCR against Moshe Ya’alon on behalf of survivors of the 1996 shelling of a U.N. compound in Qana, Lebanon was recently dismissed pursuant to the FSIA in the District of Columbia District Court, where the FSIA applies to individuals.(4)
Relying on a letter from the Israeli Ambassador to the U.S. Department of State(5) claiming that these cases “challenge sovereign actions of the State of Israel, approved by the government of Israel in defense of its citizens against terrorist attacks”, the D.C. court found that Ya’alon was acting in his “official capacity” and therefore was immune from suit.
Responding to the court’s July 2006 invitation to the U.S. State Department to submit its views on issues relevant to the case against Dichter, the U.S. Government submitted a “Statement of Interest”, arguing that even though the FSIA does not apply to individuals, Dichter is immune under federal common law and customary international law for any official acts.(6) Plaintiffs maintain that there is no immunity for violations of jus cogens norms, including war crimes, since no derogation is permitted from such peremptory norms.
Dichter also argued that Plaintiffs’ claims are “political questions” that would interfere with U.S. foreign policy if adjudicated, asserting that courts shouldn’t get involved in political and military decisions, especially regarding the Middle East, and especially by a U.S. ally. But U.S. courts do adjudicate matters arising out of incidents occurring in conflicts, including the Israeli-Palestinian conflict (albeit against Palestinian organizations). The Israeli Ambassador’s letter claimed the case risks undermining U.S. diplomatic efforts to bring peace to the Middle East and end terrorism. Notably, the U.S. did not adopt this argument, but reiterated its “serious objections” to the Al-Daraj attack, which the White House had condemned in 2002 as a “deliberate attack against a building in which civilians were known to be located.”
The Israeli Ambassador also called the case “political” and “inappropriate,” and claimed that it appears to be part of an agenda “to import political conflicts into foreign courts.” In his motion to dismiss, Dichter pointed out that CCR had filed a complaint in Germany seeking prosecution of former U.S. Secretary of Defense Donald Rumsfeld and others for torture. In its Statement of Interest, the U.S. argued that failing to grant immunity for “official” acts would “threaten serious harm to U.S. interests, by inviting reciprocation in foreign jurisdictions,” and expressed concern that U.S. officials would be the “targets of politically driven lawsuits abroad”. Rhetoric describing cases against people holding power as “political” ignores the fact that these claims seek to enforce the law, and that it is incumbent upon courts to decide the issues before them.
Such transparent attempts to stem the international trend toward UJ, respect for human rights, and the fight against impunity are nothing more than self-protection by the most powerful. Belgium yielded to pressure by Israel and especially the United States to restrict the scope of its criminal UJ law after complaints were brought against Ariel Sharon for Sabra and Shatila, against George H.W. Bush for war crimes during the first Gulf War, and against the commander of U.S. troops in the second Gulf War. Israel has been pressing the United Kingdom to amend its UJ laws since PCHR worked with U.K. attorneys to get an arrest warrant for Doron Almog for the January 2002 destruction of 59 houses in Rafah.(7) Almog evaded arrest after being tipped off, and travel by Israeli officials to the U.K. was subsequently curtailed. The assault on UJ is being wielded by those in power to protect themselves from being subject to the rule of law that should bind, and protect, us all.
International law prohibitions against jus cogens violations such as war crimes and crimes against humanity largely ring hollow if they cannot be enforced. Cases such as the one against Dichter, which is still pending before the court, not only seek justice for the victims of the human rights abuses, but also seek to raise international awareness of the crimes being committed and deter future violations. Governments must be reminded that if they do not hold their own officials liable, another nation just might. Officials must be aware that when they travel to another nation, they could be subject to its jurisdiction for crimes they have committed. International efforts to hold the perpetrators of these crimes accountable are essential to ensure that human rights are protected around the world.
Maria Lahood is an attorney at the Center for Constitutional Rights (CCR), a non-profit legal and educational organization based in New York and dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights. Ms. LaHood specializes in international human rights litigation, seeking to hold government officials and corporations accountable for torture, extrajudicial killings and war crimes. In addition to Matar v. Dichter and Belhas v. Ya’alon, her cases include Corrie v. Caterpillar, brought on behalf of Palestinians killed and injured in home demolitions and on behalf of Rachel Corrie, alleging that Caterpillar continued to sell D9 bulldozers to the IDF knowing they would be used to unlawfully demolish homes in the Occupied Palestinian Territory. Ms. LaHood also represents Maher Arar, a Syrian-born Canadian citizen, against U.S. officials for sending him to Syria where he was tortured and detained for a year. See www.ccr-ny.org for more information.
Endnotes:
(1) The Matar v. Dichter complaint and other documents are available at
http://www.ccr-ny.org/v2/legal/human_rights/rightsArticle.asp?ObjID=ccDzL2NjXs&Content=678.
(2) Besides national courts, international criminal justice may also be meted out by the International Criminal Court (ICC), but the United States and Israel have refused to ratify the treaty.
(3) Plaintiffs also brought extrajudicial killing claims under the Torture Victim Protection Act (TVPA), which Congress passed in 1992 to allow damages suits on behalf of victims of torture or extrajudicial killing when the defendant acted under the authority or color of law of a foreign country.
(4) Belhas v. Ya’alon, No. 05-2167, 2006 U.S. Dist. LEXIS 90041 (D.D.C. Dec. 14, 2006), appeal docketed, No. 07-7009 (D.C. Cir. Jan. 12, 2007), is currently on appeal. The 1996 Qana attack killed over 100 civilians and injured even more.
(5) Letter from Daniel Ayalon, Ambassador of Israel, to Nicholas Burns, Under-Secretary for Political Affairs, U.S. Department of State (Feb. 6, 2006).
(6) Dichter similarly argues that the case impermissibly challenges a so-called “act of state” or official act of Israel, but again, jus cogens violations can’t be official acts, and this defense requires that the act occur within Israel’s territory, whereas the bombing at issue was in Gaza.
(7) PCHR also worked
with attorneys in New Zealand to obtain an arrest warrant for Moshe
Ya’alon for the Al-Daraj bombing, but the warrant against Ya’alon
was extinguished.